The New Yorker – May 13, 2019

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provision for expropriation, ” Hall said.

In the South African constitution,

codified in 1996, Section Twenty-five

holds that the government can expro-

priate private property “for a public

purpose or in the public interest” if it

provides compensation that is “just

and equitable.” For a quarter of a cen-

tury, the A.N.C. has theoretically been

empowered to claim any property it

saw fit, and to set com-

pensation at zero.

But the courts have per-

sistently interpreted “just

and equitable” to mean

“market-based”—with the

exception of a single rul-

ing, made by Tembeka Ng-

cukaitobi, who is a judge

in the Land Claims Court.

That case involved a spec-

ulator who bought a plot, in 1999, know-

ing that there was a claim against it,

made by a tenant farmer whose family

had been working the land since 1946

without title. (After the Natives Land

Act allocated the majority of farmland

to whites, it was common for black

farmworkers to labor without pay in

exchange for being allowed to remain

in their homes.) In 2016, when the

tenant won his suit for the land, the

speculator asked for compensation,

amounting to more than ten times what

he’d paid for the property. Ngcukaitobi

ruled against him, arguing that the

tenant had already “paid” for the land

with his work. “My point was that we

need a shift in standards, not based in

the fundamentalism of the market,”

Ngcukaitobi told me. “It is mandated

under the constitution—our job is to

work out what justice and equity de-

mand. We have to take into account

history. We are not dealing with the

price of a box of chocolates.” The rul-

ing was overturned on appeal, but

Ngcukaitobi’s logic was rooted in the

constitution as it stands—which, he

says, makes the proposed amendment

unnecessary.

Vuyo Mahlati, the chair of Rama-

phosa’s advisory panel, and the presi-

dent of the African Farmers Associa-

tion of South Africa, a union with three

hundred thousand members, thinks that

the Land Claims Court cannot solve

the problem alone. “The judges are say-

ing to us, ‘The courts are already over-

burdened on land reform,’ ” she said.

“And if you are a poor community, or

a farmer without resources, you cannot

rely on your case—on your rights—

being fought for.”

Ngcukaitobi disputed this. “On land,

we are underworked,” he said. “We have

very few cases of land restitution. The

majority of the cases have to do with

eviction!” The court, which Ngcukai-

tobi said was devised to

“manage the transfer of

land from white hands to

black hands,” was instead

being used mostly to evict

black squatters and ten-

ants. He agreed that part

of the problem was that

white farmers had more

money to hire lawyers, but

he also blamed the incom-

petence of the government commis-

sion charged with finding and validat-

ing land claims. “It is dysfunctional,

hobbled by administrative inefficiency,

and quite frankly by corruption,” he

said. “That is the problem—the col-

lapse of institutions. But, instead of ac-

cepting their own fault, they have

blamed the constitution.”

Proponents of expropriation with-

out compensation say that it can help

break deadlocks when the government

needs to purchase land in order to re-

turn it to someone with a proven claim.

Under the “willing seller, willing buyer”

model, landowners have an incentive

to drive up prices indefinitely, Hall said:

“We have what’s called a landowner

veto. The state just carries on more and

more above market price to induce peo-

ple, and I think it’s impractical for the

state and the taxpayer to be held over

a barrel.” The bill under consideration

is more targeted than most people re-

alize, she added. “ ‘Expropriation with-

out compensation’ is obviously a pop-

ulist kind of terminology that people

have grasped on to. But the bill says

that, when the state expropriates, it can

provide no compensation only under

these five circumstances: purely specu-

latively held land; land that has been

abandoned; publicly owned land; land

that has been donated; farms with labor

tenants. It’s quite limited.”

But speculatively held land is still

someone’s property. It will be difficult

to secure foreign investment—which

the South African government is ac-

tively soliciting—if the world is afraid

to buy property that can become val-

ueless at the whim of a government

with a long history of corruption.

Mosiuoa (Terror) Lekota, who was im-

prisoned with Nelson Mandela for re-

sisting apartheid and was present when

the constitution was drafted, told me,

“When we got to Section Twenty-five,

we enunciated step by step what we

needed to do to solve problems, and

the first point we made is that no one

may be deprived of their property. That

is important to protect all of us—not

just whites!” Lekota, a former chair-

man of the A.N.C., left the Party in

2008 and formed his own, the Con-

gress of the People. “We cannot sup-

port anyone who wants to promote ra-

cial differences or cultural hostilities:

we are constitutionalists. South Africa

cannot become a great nation that can

take its place among nations of the

world unless we merge and bind to-

gether into one.”

The government’s current examina-

tion of land reform is not limited to

the question of expropriation; it is also

attempting to reckon with climate

change, drought, and urbanization. “It

is not just about farms,” Mahlati said.

“It’s about cities, where eighty-three

per cent of the urban population—

mainly black—resides on two per cent

of the land.” She framed expropriation

without compensation not only as a

moral issue but also as a financial ne-

cessity. The government currently has

a backlog of 1.4 billion dollars’ worth

of approved claims waiting to be paid

out. “These are all legitimate cases that

have been verified, proven—but the

government has to buy that land,”

Mahlati said. “And the problem now is

that the budget of the state is becom-

ing less and less.”

Hall told me, “We have to deal with

the structural inequality in this coun-

try. I think that this is all an opportu-

nity to get things right. We have a prop-

erty system that works for only about

forty per cent of our population. Most

of our people are living in informal set-

tlements, in back-yard shacks. They’re

living as farmworkers on privately held

land that they don’t own. They’re liv-

ing in communal areas with forms of

traditional government, without any

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